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the existence of a mutiny act, and that is the preservation of the peace and safety of the kingdom; for there is nothing so dangerous to the civil establishment of a state as a licentious and undisciplined army; and every country which has a standing army in it is guarded and protected by a mutiny act. An undisciplined soldiery are apt to be too many for the civil power; but under the command of officers, those officers are answerable to the civil power that they are kept in good order and discipline. All history and all experience, particularly the experience of the present moment, give the strongest testimony to this. The object of the mutiny act, therefore, is to create a court invested with authority to try those who are a part of the army, in all their different descriptions of officers and soldiers; and the object of the trial is limited to breaches of military duty. Even by that extensive power granted by the legislature to his majesty, to make articles of war, those articles are to be for the better government of his forces, and can extend no farther than they are thought necessary to the regularity and due discipline of the army. Breaches of military duty are in many instances strictly defined ; they are so in all cases where capital punishment is to be inflicted; and in other instances where the degree of offence may vary, it may be necessary to give a discretion with regard to the punishment, and in some cases it is impossible more strictly to mark the crime than to call it a neglect of discipline.
“This court being established in this country by positive law, the proceedings of it, and the relation in which it will stand to the courts of Westminster Hall, must depend upon the same rules with all other courts which are instituted and have particular powers given them, and whose acts, therefore, may become the subject of application to the courts of Westminster Hall for a prohibition. Naval courts martial, military courts martial, courts of admiralty, courts of prize, are all liable to the controlling authority which the courts of Westminster Hall have from time to time exercised, for the purpose of preventing them from exceeding the jurisdiction given to them; the general ground of prohibition being an excess of jurisdiction, when they assume a power to act in matters not within their cognizance."
THE ANGLO-SAXON SYSTEM OF LOCAL SOVEREIGNTIES.
OBJECT OF THE PRESENT WORK-FREEDOM AMONG THE ANGLO-SAXONS-EORLS AND
CEORLS-ORIGIN OF THE DISTINCTION LOCAL CHARACTER OF THE SAXON
SYSTEM-THE TYTHING AND FRANK-PLEDGE-THE HUNDRED-THE BURGH
THE SHIRE-ILLUSTRATION OF COUNTY COURT PROCEEDINGS-ORIGIN OF LEGAL
CUSTOMS IN THE FOLK-COURTS-CONSTITUTION AND POWERS OF THE WITTENA
GEMOTE-CONSTITUTION OF THE SAXON EMPIRE-DECADENCE OF THE SAXON
The liberties of England—and of these United States—as they exist to-day, were not created by the generosity of princes, por devised by legislative wisdom. They were the unquestioned birthright of our Anglo-Saxon forefathers a thousand years ago, and only wrested after centuries of contest from the royal power which had unlawfully suppressed them. Freedom is the natural condition of mankind: but when, in the formation of political organizations, the freedom of the people is surrendered to the ruling power, it cannot be regained but by a long, persistent, and determined struggle, waged through revolution after revolution, till at length the people wins back only that which it ought never to have lost. In such a sequence of events, nothing can be certainly predicted but the bloody penalty of infidelity to freedom. It is never certain that the ancient liberty will be recovered. Of the modern nations sprung from the German tribes which took possession of the Roman territories at the great upbreaking of the Empire, and established in their new homes the free customs and immunities which were their immemorial inheritance, not one, save England, has been able to this day to cast off utterly the yoke of bondage set upon their necks by mediæval feudalism; and even England had to struggle for six centuries before she was secure in the enjoyment of the rights which no man dared to question in the days of Saxon Edward the Confessor.
We believe the time has come when these United States must choose deliberately and finally between the principles of Saxon freedom and of feudal servitude. If they shall choose the former, unborn generations will rise up to call them blessed: if the latter, no one can foretell the heritage of blood and strife they will bequeath to their posterity.
Our purpose is to show the animating spirit of the Saxon system; the antagonistic principle of feudalism which superseded it; the dire necessities which forced the Norman barons to repudiate their feudal obligations and fall back on ancient statutes of the Saxon kingdom, battling with the Saxon commons for their ancient Saxon rights; and the successive steps by which the longlost liberties of England were won back from the strong grasp of kingly usurpation.
As the subject of the present chapter is the Anglo-Saxon system, it is important to observe that every Saxon man was free; and free not merely in the sense of being his own master, but be. cause he was “a living unit in the state.” He held lands in his own right. He was entitled to attend the courts, and join in their deliberations. He could bear arms, and had the legal power to use them in maintaining his just rights, even to the extent of making violent reprisals for the injuries inflicted on him by his enemies. Indeed, so far was this right of the freeman carried, that the Saxon, like the ancient Hebrew, was permitted voluntarily to abdicate his freedom and become the vassal of another under whose control he chose to place himself.
It is true the freedom of the Saxons did not necessarily include the notion of equality. Far otherwise. They were divided into two great classes, eorls and ceorls, or gentlemen and commons; a distinction which the learned Lingard says was merely personal, conveying neither property nor power. The eorls were said to be ethel-born, that is, of noble birth ; which, probably, among a people who acknowledged no merit superior, or even equal, to that of martial prowess, was applied only to those whose fathers had never